Democrat lawyers and law professors are pretending like there’s nothing to see here, but the announcement this weekend that Hillary Clinton will engage in recounts in Wisconsin, Michigan and Pennsylvania is a big deal.
Having conceded Donald Trump’s victory three weeks ago, Clinton now will participate in a legal proceeding that challenges the election’s outcome. And make no mistake—that is the only point of a recount. It is a legal challenge to the certificate of election that was issued to the declared winner.
The recounts in this election are brought nominally by Green Party candidate Dr. Jill Stein. But Hillary Clinton is the only candidate who possibly could stand to gain from them, because Stein finished millions of votes behind both Clinton and Trump in all three states.
Stein admits—as she must—that the recounts will not change the outcome of the election in any of the states at issue. Historical data reveals that recounts do not change the outcomes of elections where more than a few hundred votes separate the candidates. The magic number for a statewide recount is about 300 votes. Here, Clinton trails by 10,000 votes in Michigan, 30,000 in Wisconsin, 70,000 in Pennsylvania.
Clinton’s campaign also admits—as it must— that the recounts will not change the election result, and that there is no evidence the election results were “hacked.” After a supposed expert suggested that Russian hackers had corrupted touch screen voting machines in Wisconsin to flip votes from Clinton to Trump, other experts thoroughly, convincingly debunked the idea. Now even President Obama’s White House states that the result of the election accurately reflects the will of the American people.
So instead, these recounts will proceed under the laugh-out-loudable theory that the same Russian hackers could have—not did, but could have—requested, received and voted hundreds of thousands of mail-in absentee ballots without detection. This theory is so devoid of any factual basis that a court could sanction any lawyers who dared to file it in a legal proceeding. (In Wisconsin, Stein’s attorneys filed it with a state elections agency.) This is the black helicopter, tinfoil hat theory upon which Hillary Clinton will participate in a challenge to the election of Donald Trump.
Of course, the recounts will neither prove nor disprove the theory. Recount officials will confirm that sheets of printed results from touchscreen voting machines were reported and recorded accurately in the election record, and will tally optical scan and other paper ballots by hand. That’s it. All candidates for president very likely will gain votes in this process, as recount officials detect with human eyes evidence of voter intent that optical scanning machines did not pick up on Election Night. Some will gain more than others. But Hillary Clinton will not gain the hundred thousand or so net votes she needs to close the gap in Wisconsin, Michigan and Pennsylvania and become the 45th President of the United States.
So if there is no evidence that Russian hackers flooded the election with fraudulent absentee ballots, and if there is no chance of changing the election’s outcome, what are we doing here? Jill Stein, trailing by millions of votes, very clearly is raising campaign funds and, perhaps less clearly, driving a policy point about election administration. Hillary Clinton’s campaign, in contrast, earnestly maintains that it is merely being prudent and intervening in the recount proceedings to protect her interests.
But what interests need protecting? Clinton lost the states at issue and conceded the election. And Stein isn’t challenging Clinton’s election, she’s challenging Trump’s. Does Clinton fear that Stein will use the recounts to steal all of her votes in Wisconsin, Michigan and Pennsylvania and vault into second place, or maybe even first, if her lawyer isn’t there to watch? And what if Stein did? It wouldn’t make her president, and it wouldn’t make Hillary Clinton president. Or does Hillary Clinton think that maybe, just maybe, she won these states, and the presidency?
As the losing candidate in an election she conceded and admits cannot be won in a recount, Hillary Clinton has no reason to participate in these recounts. Whatever her motive for participating may be, we do not have to know it to know the effect.
When Donald Trump wrongly, and without any evidence, suggested that our nation’s voting system was rigged to elect Hillary Clinton, I and many others objected and explained to the American people why the election was not rigged. Now, by lending her presence to futile recounts in three states that she lost—recounts based upon nothing more than a farcical theory—Hillary Clinton legitimizes those proceedings when, for the good of the country and in the interests of national unity, she should refuse to participate in them and call for them to end.
More troublingly, by legitimizing the recount proceedings, Clinton delegitimizes Trump’s victory the same way that he attempted preemptively to delegitimize hers—by giving voice to theories that never really can be disproven. Only 31 instances of voter impersonation fraud? Those are just the ones you caught. No proof that Russians hacked our voting machines? They programmed the code to delete itself so you’ll never find evidence of it. Trump should have refused to indulge these theories then, and Clinton should refuse to indulge them now.
Indeed, it’s been almost 25 years now since George H.W. Bush left office as the last president universally regarded to have won and held the office legitimately. In the generation since, significant segments of the American public have believed that the then-current occupant of the Oval Office is “not my president.” Bill Clinton had Whitewater and impeachment. George W. Bush had the Florida Recount and 9/11 “truthers.” Barack Obama had the “birthers.” Now, it appears Donald Trump will have phantom Russian absentee voters.
The recount in Wisconsin is not slated to commence until later this week, and Stein has yet to file for the Michigan and Pennsylvania recounts. So there’s still time for Hillary Clinton to do the right thing. The position taken by her own attorney in another recount—this one, in the North Carolina governor’s race—is instructive. In North Carolina, the Democrat candidate leads the Republican candidate by about 8,000 votes. Clinton’s lawyer has called the recount futile, described the lead as insurmountable, derided the proceeding as a waste of taxpayer dollars, and repeatedly demeaned the Republican candidate as a sore loser.
Hillary’s lawyer should know. He’s one of the very best—undefeated in statewide recounts. She should listen to him, and decline to participate in Stein’s futile, wasteful challenge to Donald Trump’s election.